It turns out there can be bipartisanship in Congress – just call a House Agriculture Committee hearing, put the EPA on a pedestal and hand out tomatoes.

At the start of Thursday’s hearing, EPA Administrator Lisa Jackson tried to parry myths about agency actions. Her underlying point – that rumors rampant in farm country are unfairly tarring the EPA – didn’t soften the subsequent questions and comments she faced.

Illinois Rep. Tim Johnson: The EPA “has absolutely been the poster-child for usurpation of legislative authority.”

California Rep. Jim Costa: The EPA “is the most unpopular agency in farm country from sea to shining sea, bar none. Have you heard of judicial activism? I submit that your agency often pursues a course of ‘agency activism.’ You want to have jurisdiction over an issue but the law may not quite say so. … So, you settle suits that allow you to then go pursue a course of action that you may not have within the law.”

North Carolina Rep. Larry Kissell: “Perception is reality. And today you’ve heard the strong perception that the EPA doesn’t fully understand, or perhaps isn’t ready, to work with the ag community in a lot of ways. You had examples of five myths early (in your testimony). I’m sure after debunking those myths we could fill the ledger back up with many, many more. That’s part of the problem: there’s so much uncertainty involved.”

Wisconsin Rep. Reid Ribble: “I’ve never been in a committee hearing quite like this where everyone agrees you’ve got problems. … The American people don’t trust you. You need to hear that and take it back.”

Kicking it off

Oklahoma Rep. Frank Lucas, committee chairman, kicked off the lengthy hearing by telling Jackson the “regulatory agenda of the EPA” is the “top priority for nearly every” committee member. “The reason is simple: many members of this committee believe that over the past two years the EPA has pursued an agenda seemingly absent of the consequences for rural America and production agriculture. Your agency is creating regulations and policies that are burdensome, overreaching, and that negatively affect jobs and rural economies.

“Just a few examples: EPA has proposed zero-tolerance standards for pesticide spray drift; initiating action to stiffen the current regulatory standard on farm dust, which would make tilling a field, operating a feed lot or driving a farm vehicle nearly impossible; and an unprecedented re-evaluation of the popular weed control product, atrazine. In 2006, the EPA completed a 12-year review (of atrazine) involving 6,000 studies and 80,000 public comments. Yet, one of the first orders of business of the Obama administration was to start over after an article appeared in the New York Times.”

Jackson told the committee the EPA was not pursuing the regulation of dust, spray drift and nutrients. But Lucas asked if Jackson believes the EPA has the authority to regulate those things.

“Yes, sir,” admitted Jackson. “Dust would be under the Clean Air Act under particulate matter standards. Nutrients are under the Clean Water Act, certainly. Spray drift, through FIFRA (Federal Insecticide, Fungicide and Rodenticide Act) labeling – which is where this issue was raised. EPA’s decisions on what to put on the label has a tremendous (impact) on that sector.”

Regarding the regulation of dust, Texas Rep. Michael Conaway was dismissive saying Texans worry that the EPA plans to oversee something natural and ubiquitous in the state. Conaway recounted a recent drive through pastureland in his home state. Wind was blowing 40 to 50 miles per hour and blown dirt – “excuse me ‘course particulate matter’” said Conaway, mockingly – was so thick he had to slow the car.

Settlement questions

Minnesota Rep. Collin Peterson, ranking member, wanted to know how the EPA handles legal actions. “What factors do you use to determine whether, or not, to settle with a litigant or petitioner?”

Jackson: “EPA makes a case-by-case judgment and we must look at several factors -- the requirements of the law, most importantly. Legal risk is always a big factor in determining whether to continue litigation or to settle a case.”

At what point does the Department of Justice (DOJ) get involved and who has the final say?

“We work in concert with the DOJ,” said Jackson. “They act as a check, if you will. We cannot move forward on a settlement without concurrence and consultation with the DOJ.”

Peterson wanted to know if all EPA settlement agreements “contain provisions for payment of attorney fees?”

“In general, I’ll simply say that Congress has imposed a vast array of requirements on EPA,” said Jackson. “We’re frequently sued by environmental and other organizations under statutes claiming that EPA has failed to take action in a timely manner, or that we’ve been unreasonably delayed. In many cases, the remedy demanded under that lawsuit is to undertake rule-making.”

Peterson interrupted, “What about if it isn’t litigated and you just settle? Then, all of the sudden, you’re doing a settlement that requires you to do rule-making? And (Congress) didn’t authorize it or probably agree with it.”

The EPA looks “at what the law requires us to do,” said Jackson. “One of the questions is whether (the EPA) would lose if we went to court and whether we’d be best served by settling early and agree on a schedule for rule-making. Oftentimes, that rule-making is overdue but (is something) we can live with rather than have the courts impose one on us. And we’d still have to pay court fees that would be much higher (if EPA) is on the losing end of a lawsuit.”

An irritated Peterson spoke about an area in Minnesota that annually floods. “It’ll flood again this year. … The reason we’ve been unable to do anything about (the flooding) is environmental groups have basically stopped us. These are folks not from the area, they bring nothing to the table and have cost taxpayers I don’t know how many hundreds of millions of dollars.”

Maybe the problem, suggested Peterson, is environmental groups have been provided “too many tools to muck up the whole system. Maybe we need to review those things.”

Unable to find a list of settled lawsuits on the EPA’s Web site, Peterson asked if such information is provided to the public. “I’ve heard complaints that (people) can’t find information on these settlements – how much, who got paid, how much for attorney fees.”

Jackson: “Most of our settlements are required by law to go through public comment. As to whether the (settlement information) is (available) in one place, I’d like to get back to you. I don’t know the answer off the top of my head.”

Lucas then jumped in. “The ranking member has a very good point. I think the committee should ask in writing for a list of all” the settlements. “We’re going to send you a wonderful letter, administrator, a wonderful letter.”

Jurisdiction

Under court order, newNational Pollution Discharge Elimination System (NPDES) permits -- requiring farmers and other applicators to obtain a permit for pesticide applications made to, over or near bodies of water -- have long been in development at the EPA. Facing an April 9 deadline to implement the permitting process, the agency recently requested the court allow a six-month delay. The new permitting system is also the target of a House bill (HR 872).

“If you don’t receive the extension what will farmers to do by April 9?” asked Ohio Rep. Jean Schmidt.

“If there’s no extension, we’re under order to get a permit out,” answered Jackson. “That’s not our preferred path because not only do we have more work to do on biological opinions and endangered species, but with the states.”

“That’s a much-debated and discussed topic,” said Jackson. “Suffice it to say, I recognize in my job that the jurisdiction of the Clean Water Act and its limitation to ‘navigable waters’ and the two Supreme Court cases that spoke to that issue are all very important and have created quite a bit of uncertainty in terms of jurisdiction.”

Gibbs: “I’m concerned there’s a broad expansion of EPA’s jurisdiction that will impact our economy and agriculture. … Wouldn’t that be better left to states?”

“Right now, as a result of the two Supreme Court cases, there is great variation and confusion on what waters are covered under the CWA,” said Jackson. “EPA has been developing … guidance that is intended to (provide) clarity. We’ve heard from the regulated community that they need certainty.

“I do want to point out that we’re well aware of the exemptions that agriculture currently holds from the CWA. And we’re very respectful of that fact those exemptions are statutory.”

“EPA took the position that there wouldn’t be a need to get a separate permit,” said Jackson. “But the courts found otherwise. The courts have ruled that if you apply pesticides directly to water – not land, not terrestrial application – then you need a CWA permit. EPA has been working with states and just recently requested from the court another delay to continue working with states on a ‘general’ permit. General permits are the least burdensome.”

Budgets/atrazine/rice

What about the EPA’s priorities considering the tightening of budgets?

“I’d like to know how (the EPA) is prioritizing expenditures,” said Colorado Rep. Scott Tipton. “Is the re-evaluation of atrazine a high-priority project for you to spend funds on? Or do you believe the appropriations you’ll have will be limitless?”

The re-evaluation of the “new science that’s emerged on atrazine is part of our base budget,” replied Jackson. “We intend to continue funding it so we can complete it. It will actually be quite helpful because we know have a National Cancer Institute Study expected, I believe, next year.

“I see that as our commitment to sound science – that when new data are put before us, we try to make a priority of evaluating it, especially as studies start to build up.”

Tipton: “What about the unfunded mandates you’re putting on communities?”

“Every rule and regulation we do is subject to its cost and benefit,” said Jackson. “That’s (never) truer than the pesticide program that’s so important to this committee. … Rather than unfunded mandates, our job is to implement the environmental laws. That’s what EPA was created to do.”

What about spray drift?

“It came to my attention that (language) discussed for possible inclusion on a label would set a standard of ‘no spray drift,’” said Jackson. “I’ve made it clear, and we’ve been working as an agency since, to make sure that isn’t the impact. … Of course, we want to see (drift) minimized but don’t want to set a standard people can’t meet.”

Representing the “Number One rice-producing district in the United States” Arkansas Rep. Rick Crawford said “Rice is produced in standing water for 45 to 60 days – six to eight inches. Are rice fields subject to regulation under the CWA?”

Active agriculture is not subject to regulation, said Jackson. Neither is rice field discharge. “Rice water is considered irrigation return flow and is exempt from the new pesticide water permit.”